State of Minnesota, Respondent, vs. Steven Thomas Carter, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-913

 

State of Minnesota,

Respondent,

 

vs.

 

Steven Thomas Carter,

Appellant.

 

Filed June 29, 2004

Affirmed

Harten, Judge

 

Beltrami County District Court

File No. T5-03-1855

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Michael L. Garbow, Assistant Beltrami County Attorney, Judicial Courts Annex, 619 Beltrami Avenue Northwest, Suite 40, Bemidji, MN 56601 (for respondent)

 

Darrell G. Carter, Carter Law Office, 622 Bemidji Avenue North, Bemidji, MN 56601 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge, Harten, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Appellant challenges his conviction for DWI, arguing that the district court erred in permitting amendment of the complaint after the jury was impaneled.  Because we see no error in permitting the state to particularize its charge against appellant, we affirm.

FACTS

On 28 April 2003, appellant Steven Carter was stopped while driving and tested with an intoxylizer that indicated his blood alcohol concentration (BAC) was .12.  He was given a citation.  Under "Offense Description No. 1" on the citation, the officer had written, "Driving Under the Influence 4th Deg. .12"; ".12" was circled.  Under "Statute/ordinance" was written "169 A. 27, 169A.20(1)."  Two days later, appellant was sent a copy of the police report and a copy of the citation. 

On 27 June, the jury trial began.  After the evidentiary phase of the trial was completed, the prosecutor first realized that the proposed jury instructions did not include an instruction for a BCA of over .10.  The prosecutor asked the district court and appellant's counsel for leave to specify that the charge was violation of Minn. Stat. § 169 A. 20, subd. 1(5) (driving with a BAC of more than .10).  Appellant's counsel refused, thereby prompting the prosecutor to move to amend the charge.  The district court granted the motion. 

The jury found appellant guilty of violating Minn. Stat. § 167.20, subd. 1(5) (driving with a BAC of more than .10), but not guilty of Minn. Stat. § 167.20, subd. 1(1) (driving while under the influence of alcohol).[1]  Appellant moved to vacate the guilty verdict, arguing that the district court had erred in allowing amendment of the charge after the jury had been impaneled.  The motion was denied, and appellant challenges that denial, arguing that the district court abused its discretion in allowing the amendment after the jury had been impaneled because the amendment added a new charge.[2]

D E C I S I O N

 

            The district court has broad discretion to grant or deny leave to amend a complaint, and its ruling will not be reversed absent a clear abuse of discretion.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  Whether the district court has abused its discretion in ruling on a motion to amend may turn on whether it was correct in an underlying legal ruling.  Id. at 761-62.

            After the jury was impaneled, the district court permitted the state to amend the complaint to include a charge of violating Minn. Stat. § 169 A. 20, subd. 1(5), driving with a BAC of .10 or more.  "[A] court may permit an indictment or complaint to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced."  Minn. R. Crim. P. 17.05.   When an amendment simply particularizes the original charge, it does not allege a new offense.  State v. Miller, 352 N.W.2d 524, 526 (Minn. App. 1984), review denied (Minn. 9 Nov. 1984).  The district court found that

[t]he tab charge [Minn. Stat. § 169A.20(1)] did not specify the particular subpart describing [appellant's] offense.  When the State later requested to make the amendment, the substance of the charge was essentially a restatement with particularity, and not an additional or new offense.

 

Appellant argues that the amendment impermissibly added a new charge after the jury was impaneled.  He relies on State v. Caswell, 551 N.W.2d 252, 253 (Minn. App. 1996) ("A court may not permit the amendment of a complaint to add new charges after trial has commenced."), but his reliance is misplaced.  Caswell is distinguishable on three grounds.

First, in Caswell, the amendment added two new charges (making a u-turn that interfered with traffic and careless driving that endangered people or property) to the original charge (turning across a double yellow line without signaling).  Id. at 255.  In the case before us, the amendment simply identified the subpart of Minn. Stat. § 169 A. 20, subd. 1, under which appellant was charged.  See State v. Hatlestad, 347 N.W.2d 843, 844 (Minn. App. 1984) ("DWI" traffic ticket on which was written only Minn. Stat. § 169.121, (predecessor of Minn. Stat. § 169A.20) and BAC of .15 "was an adequate form of complaint to try defendant under Minn. Stat. § 169.121, subd. 1(a) and subd. 1(d)"); Miller, 352 N.W.2d at 526 (changing charge from driving to being in physical control "merely restated with particularity the original complaint of driving under the influence . . . [and] did not allege a new offense"). 

            Second, in Caswell, the court found possible prejudice because the defendant, prior to the addition of the new charges, had waived her right to a jury trial, which she might not have done had she known of all the charges, 551 N.W.2d at 255; here, appellant had a jury trial.

            Third, in Caswell, "the additional offenses contained different elements and subjected her to conviction and sentencing on a charge against which she was not prepared to defend."  551 N.W.2d at 256.  Here, appellant's citation identified the "Driving While Impaired" statute, Minn. Stat. § 169 A. 20, and stated that appellant's BAC was .12.  "[O]n a tab charge for D.W.I. the specific subdivision of section 169.121 [predecessor to Minn. Stat. § 169 A. 20] need not be included."  State v. Voracek, 353 N.W.2d 219, 220 (Minn. App. 1984).  The district court did not abuse its discretion in denying appellant's motion to vacate.

            Affirmed.

 

[1] See State v. Voracek, 353 N.W.2d 219, 220 (Minn. App. 1984) (driving while under the influence of alcohol and driving with a BAC of more than .10 are separate offenses).

[2] At the hearing on his motion to vacate, appellant also argued that he had been prejudiced by the amendment.  The district court concluded that appellant was not prejudiced because "[t]he Police reports, which were sent to [appellant] April 30, 2003, almost two months before trial, disclosed test results of .12 BAC."  Appellant does not challenge that conclusion.